Pathological science?

And the most fundamental problem is that the Daubert Court (doubtless encouraged by the dual descriptive and honorific uses of “scientific) is preoccupied with specifying what the method of inquiry is that distinguishes the scientific and reliable from the non-scientific and unreliable. [...] Placing emphasis on evidence of reliability incorporates a flexible standard that can be tailored to the particular kinds of evidence, the type of litigation, the capabilities of the respective parties, and the exigencies of the case without reifying scientific method, the normative ethos, or the efficacy of peer review and publication. [...] The third factor (c) requires the trial judge to consider expert evidence in the context of the rules of evidence, particularly the exclusionary rules, governing the trial. [...] Applying the admissibility criteria to the case at hand, Sopinka J. explained that in the absence of “indicia of reliability, it cannot be said that the [expert] evidence would be necessary.”47 On the issue of relevance, the Court accentuated the need to exclude expert evidence if the probative value is outweighed by the prejudicial effect. [...] The “admissibility of expert evidence,” Binnie J. explained, “should be scrutinised at the time it is proffered, and not allowed too easy an entry on the basis that all of the frailties could go at the end of the day to weight rather than admissibility.”60 The Court was anxious that the “search for truth” in the courtroom should not include “expert evidence which may ‘distort the fact-finding proc